In essence this ruling answers a question of interpretation concerning point (c) of the second paragraph of Article 102 TFEU according to which, ‘applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage’, may constitute an abuse of a dominant position. Therefore, according to the letter of this Article, the prohibition only applies if it places a firm at the receiving end at ‘at a competitive disadvantage’.

On 19 April 2018, the Court of Justice of the European Union (“CJEU”) clarified, firstly: not every disadvantage affecting operators who were charged more, compared with the tariffs applied to their competitors for an equivalent service, means that competition is distorted. Secondly, ‘competitive disadvantage’ cannot be assumed, this determination has to be made on a case-by-case basis, taking into account all relevant circumstances in order to conclude that the behaviour of the dominant firm has had an effect on costs, profits or any other relevant interest of one or more of the partners.

It also articulated that it is not necessary to take into account the seriousness of a possible ‘competitive disadvantage’; fixing an appreciability (de minimis) threshold for the purposes of determining whether there is an abuse of a dominant position is not justified.